When is a conflict of interest not a conflict of interest?

When is a conflict of interest not a conflict of interest?

There has been a good deal of comment recently about the coming Supreme Court case regarding Article 50. I thought it might be worth looking at the background to see if it illuminates the current situation.

To recap: The case is going to be heard by the Supreme Court – a group of 11 extremely senior judges who have the duty of deciding on the point of law under discussion without personal prejudice or bias. But one judge, Lady Hale, has already questioned – in a speech in Kuala Lumpur of all places – if Article 50 could be passed by a simple Act of Parliament or if “it would have to be a comprehensive replacement of the 1972 act.” All before she has heard a word of evidence in the case.

Lord Neuberger, meanwhile, is married to Angela Holdsworth, whose views about Leave voters are perhaps best described as “robust”. She has also commented on the point of law at issued saying “It seems unlikely that a PM could trigger Article 50 without Parliament’s approval.”

The Supreme Court responded to suggestions that Neuberger and Hale might care to step aside in this case by saying that it was “absolutely confident that no breach of the code of conduct had occurred”.

Well, maybe.

But the point about a conflict of interest is not whether anything improper was done behind closed doors – which can be difficult to prove – but whether a reasonable person might conclude that some improper might have been done.

In legal terms, the test case here is the 1924 action of Rex vs Sussex Justices. The clerk of the court in a case of a motoring charge retired with the magistrates, taking with him all the documentation. It was the clerk’s job to answer any questions that the magistrates had about the documentation while they considered their verdict. The defendant was found guilty. But it later tranpired that the clerk also worked for the firm of solicitors who were suing the defendant in the civil courts.

Unsurprisingly the defendant appealed on the grounds that the clerk had a conflict of interest. The clerk and magistrates explained that the clerk had taken no part in the decision and had not even been asked any questions. Hearing the appeal, Lord Chief Justice Hewart accepted that the neither the clerk nor the magistrates had acted improperly nor had they intended to act improperly. But that, he said, was not the point.

Hewart declared in words that have resounded through the British legal system ever since that “it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done. Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice.”

Turning to our present case, one could accept that Lady Hale was merely musing on hypothetical questions while on a break in Kuala Lumpur. One could accept that Lord Neuberger will not be cowed by an angry wife glaring at him across the breakfast table. But that is not the point. As Lord Hewart said “even a suspicion” is enough.

And yet our Europhile Establishment seems determined to plough ahead and allow these two folks to decide on the issue no matter what they or their close relatives may have said or believe.

So, to return to my original question, “when is a conflict of interest not a conflict of interest?” The answer appears to be “when it favours the cause of the European Union.”

Rupert Matthews is a freelance writer and historian. During the recent EU Referendum campaign he served as Campaign Manager for Better Off Out and spoke at meetings from Penzance to Aberdeen, Belfast to Dover. Rupert has written over 100 books on history, cryptozoology and related subjects. He has served as a councillor for 8 years and has stood for both the Westminster and European Parliaments. You can follow Rupert on Twitter at @HistoryRupert or on Facebook as rupert.matthews1.

4 comments

It’s an obvious conflict of interest. I would have expected Lord Neuberger to have already announced that he would not participate in the appeal. If he refuses to exclude himself, he should be brought before the Judicial Council. Certainly if he does not exclude himself, a rejection of the appeal by the Supreme Court will be tainted. The fact Lord Neuberger hasn’t already taken himself off the appeal is a terrible reflection on the present quality of the Supreme Court compared to that of Lord Chief Justice Hewart’s day.

I meant to include Lady Hale in my earlier post. She also should withdraw from hearing the pending appeal. We are down from 11 to 9 Supreme Court Lord Justices eligible to hear the appeal in December. And I very much hate to say this, but I believe — given the evidence of almost all if not all British judges being Europhiles — the decision of the remaining 9 Lord Justices is already a foregone conclusion. An extremely sad state of affairs. My opinion of the UK’s highest court is much diminished from the opinion that I once held.

Readers may be interestedto read this letter sent by Davd Barnby to Lord THomas, one of the judges invovled in the original court case:-

Dear Lord Chief Justice Thomas,

I hope you will not object to my writing to you regarding the High Court’s judgement of 3rd November on triggering the Treaty of Lisbon’s Article 50, a Treaty that sets out how a member nation leaves the European Union.

In this case: R (Miller) -v- Secretary of State for Exiting the European Union, the High Court ruled that ‘the Secretary of State does not have power under the Crown’s prerogative to give notice pursuant to Article 50 of the TEU for the United Kingdom to withdraw from the European Union’.

This was an issue of such national importance and so contentious that it was imperative that justice was not only done, but seen to be done.

I contend, with the utmost respect, that owing to the widely held perception that you had a definite personal interest in the outcome of the proceedings, justice was not seen to be done.

I will explain: you, as a founding member of the European Law Institute, set up to promote European legal integration, with one of its core tasks being:

‘ …… to evaluate and stimulate the development of EU law, legal policy, and practice, and in particular make proposals for the further development of the acquis and for the enhancement of EU law implementation by Member States.
could not have found the expected consequences of the 23rd June Referendum other than contrary to this objective which you support.

The ‘acquis’, or the ‘Acquis Communitaire’ in full, referred to in this text, is recognised as a device for the European Union to acquire powers which are never to be returned to nation states. In short the aquis is designed as a ‘ratchet’.

Nemo Iudex in Causa Sua

In the Irish Journal of Legal Studies Volume 2(2) the subject of No-Bias Rule entitled:
‘Nemo Iudex in Causa Sua: Aspects of the No-Bias Rule of Constitutional Justice in Courts and Administrative Bodies’ is discussed.

Section. A, ii: explains how this concept is considered in England:

‘In England, where the decision maker has some proprietary or some other definite personal interest in the outcome of the proceedings, there is a presumption of bias 14.. This is referred to as “automatic disqualification”. I will consider ………….. ‘ [my underlining]

I put it to you, with respect, that you as a decision maker in this case, and by virtue of your special interest in the EU acquiring non-returnable powers (from the UK) there must be a presumption of bias and that you should have disqualified (recused) yourself from participation in this case.

More fundamentally, the question of the Court’s competence to rule on the exercise by ministers in the Queen’s Name of Her treaty-making powers under the Royal Prerogative was decided in the reign of Queen Victoria in the great case of Rustomjee v The Queen.

How would the case have been decided had you recused yourself?

Since you did not recuse yourself from the case, this is but a hypothetical situation, but had you done so the outcome could and ought to have been different. The following examples examining the Approved Judgement from the Hearing of 13th, 17th and 18th October 2016, is not exhaustive, but should serve to demonstrate the point.

1. Precedent for deciding issues by Royal Prerogative
On 20th November 2007 Baroness Ashton of Upholland President of the Council, Privy Council Office, Leader of the House of Lords and Lord President of the Council (Privy Council Office) confirmed:
‘All treaties are made and ratified under royal prerogative. As has always been the case, Parliament cannot unilaterally amend any treaty, which in this case will have 26 other signatories besides the UK’.
It is both illogical and indefensible for the courts to hold that the Royal Prerogative can be used to sign up for but not withdraw from EU treaties, unless it could be shown that the European Union’s ‘aquis’ principle applies to the Government’s use of the Royal Prerogative, that is the Government can make treaties, but it cannot undo them. This possibility has not been argued in the Court and therefore it follows that the Government using the Royal Prerogative can undo it.

2. European Communities Act 1972 (ECA72) – entrenchment
Paragaraph 92 ‘Interpreting the ECA 1972 in the light of the constitutional background referred to above, we consider that it is clear that Parliament intended to legislate by that Act so as to introduce EU law into domestic law (and to create the category (ii) rights) in such a way that this could not be undone by exercise of Crown prerogative power’.
This is no more than a supposition not demonstrated by the Hansard record of debates in the House of Commons on ECA72. In fact the Bill (2nd Reading) was passed by the narrowest of margins (308 to 301) and that only following the Prime Minister’s threat, with all that implied, to dissolve Parliament if the Bill failed. The Bill was vigorously resisted throughout and the PM’s promise that Britain would not join (the then Common Market) without the whole-hearted consent of Parliament and the people was not met (the poll of polls in February 1971 showed only 20% of the public in support of joining the Common Market).
The leader of the opposition, Harold Wilson’s statement on the result runs counter to the claim in the Judgement: ‘we consider that it is clear that Parliament intended to legislate by that Act ………. in such a way that this could not be undone by the exercise of Crown prerogative power’. He said:
“ ….. in breach of his [the PM] election promise, the Prime Minister has not got the full hearted consent of the British people. Secondly, he has not got the wholehearted consent of Parliament. Thirdly, when he said that he must get this through on Tory votes in a majority, he has not done so.”
Perhaps another judge sitting in your place might not have made the claim.

3. The Referendum was only advisory
Paragraph. 105. ‘ ………. Parliament must have appreciated that the referendum was intended only to be advisory ..…’, implies that since the Referendum was only advisory the Royal Prerogative could not apply.
Whether or not this is correct would be hard to determine, but the voting public and those campaigning took the Referendum seriously expecting the result to be honoured. The public were in fact told the by the Government in a paper: ‘This is your decision. The Government will implement what you decide’ (hardly advisory). The fact the Government immediately set out to implement the decision undermines any claim that it was not a serious Referendum. Someone else sitting in your place may well have taken this view.

However independently, conscientiously and carefully you weighed the evidence in this case, your membership of an activist pro- EU organisation must give rise to public uneasiness and disquiet. Previous cases brought by independence campaigners against the transfer of powers to the EU have always been unsuccessful and the prerogative treaty-making power of the Crown held not to require parliamentary sanction – as in the case brought by Lord Rees Mogg in 1993 . Under these circumstances, the cheerful good nature of the independence campaigners which was such a feature of the Referendum is, I suspect, unlikely to continue.

Excellent David, and thank you for this comprehensive review. The fact is also that “No Government May Bid Its Successor,” so any Government may repeal the European Acts surely, which would satisfy Article 50(1) surely – tat any member may leave according to its own Constitution.